(Photo: idrutu/iStockphoto.com.)

ALBANY – Citing the Commission on Judicial Conduct’s mission to safeguard the “integrity of the judicial system,” the state Court of Appeals Tuesday upheld the commission’s authority to use sealed criminal records in its investigations.

In doing so, the unanimous court declined to order the commission to remove from its public records details about the activities and identity of a Brooklyn lawyer who had been acquitted of criminal charges related to a 2008 campaign for Manhattan surrogate.

CPL 160.50 generally provides for all records to be sealed in cases that have ended favorably to the defense, such as through acquittal. Only a limited number of exceptions are granted to law enforcement agencies.

The Court of Appeals held that while none of the six exceptions under CPL 160.50 specifically apply to the Commission on Judicial Conduct, there are broader sources of authority for the panel to see sealed materials, such as state Judiciary Law §42(3) and its charge under the state Constitution to investigate and sanction misconduct by judges.

“Allegations of judicial misconduct bring the integrity of the judicial system into direct question and undermine the public’s faith in our judicial officers,” Judge Jenny Rivera (See Profile) wrote for the unanimous court in Matter of New York State Commission on Judicial Conduct v. Rubenstein, 99. “It is the commission’s duty to preempt and mitigate these potential consequences by quickly and effectively investigating allegations of judicial misconduct.”

The administrator of the commission, Robert Tembeckjian, said the ruling “validated the tools” that the panel needs to do its job.

“Had we lost this case, the effect would have been debilitating,” he said. “It would have meant, for example, that if a judge fixed a friend’s case by dismissing it, which by operation of law would seal the record, we would have no access to the court file where evidence of the wrongdoing would be.”

The commission would have encountered the same problem when seeking criminal court records that might clear a judge of false accusations of wrongdoing, Tembeckjian said.

Brooklyn Attorney Seth Rubenstein and Nora Anderson, a successful candidate for Manhattan Surrogate, were charged with campaign finance irregularities after the 2008 elections. Both were acquitted (NYLJ, April 2, 2010). Anderson was then allowed to take her seat as Manhattan Surrogate after spending more than 15 months on paid suspension.

Meanwhile, the commission launched a disciplinary inquiry. Anderson and the commission reached a 2012 agreement under which she was censured (NYLJ, Oct. 11, 2012).

The commission’s Determination of Censure was replete with references of Rubenstein providing Anderson’s flagging primary campaign with $250,000 in gifts and loans that Anderson acknowledged were improperly reported to elections officials. Contributions by individuals to judicial candidates in that campaign were capped at $33,122 under the law.

According to the commission, Rubenstein made decisions for Anderson’s campaign that were “contrary to the generally accepted and understood interpretation of the election law.”

During the investigation, the commission in 2010 sought and received from Supreme Court Justice Fern Fisher access to records in the Anderson-Rubenstein criminal case. Two years later, Rubenstein moved to have that unsealing order vacated.

The Appellate Division, First Department, dismissed Rubenstein’s appeal, saying it was moot because the records already had been used and returned to the courts.

The Court of Appeals Tuesday acknowledged that, as Rubenstein argued, the documents posted by the commission “adversely impact his professional reputation and standing within the legal and greater communities, and constitute enduring consequences that flow from the use of the sealed records.”

“It is impossible to see how it could be otherwise,” Rivera wrote.

For that reason, the court said the First Department had erred in finding Rubenstein’s action moot. But the court did not grant Rubenstein’s request that the commission remove the sealed documents and references to him in the records of Anderson’s disciplinary case.

Anderson was not a party in Rubenstein’s litigation with the commission, and the Court of Appeals ruling referred to Rubenstein’s co-defendant in the elections fraud case as “Judge Doe.” But Rubenstein and Anderson are both mentioned by name in the commission’s disciplinary case which formed the basis of the matter before the Court of Appeals.

Chief Judge Jonathan Lippman (See Profile) and Judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile), Robert Smith (See Profile), Eugene Pigott Jr. (See Profile) and Sheila Abdus-Salaam (See Profile) joined in the Rivera ruling.

Greenfield Stein & Senior partner Gary Freidman argued for Rubenstein.

Assistant Solicitor General Won Shin represented the commission.

Sexual Offense Risk Factors

In another case Tuesday, the court conducted a lengthy debate over how the state’s Sex Offender Registration Act [SORA] treats child pornography offenders.

In the 5-2 ruling, the majority decided that if an offender argues for a departure from the guidelines to a lower risk factor than the usually-assigned level, it must show it did so under a preponderance-of-the-evidence standard and not the more stringent “clear and convincing” evidence standard.

Abdus-Salaam, writing the majority opinion, said the Appellate Division departments have split over the standard of evidence to be used when arguing downward revisions in the risk factor, and she said the SORA itself does not spell out what the correct standard is.

“In most civil proceedings, a party seeking relief need only establish entitlement to such relief by a preponderance of the evidence, and logically the same standard should apply to a defendant’s request for a downward departure in a civil SORA hearing,” she wrote.

Otherwise, the majority said, courts should adhere to the letter of the SORA statute when assigning risk factors to offenders in child porn cases, such in determining the number of the offenders’ victims and whether their victims were strangers or acquaintances.

Graffeo, Read, Pigott and Rivera joined Abdus-Salaam.

In dissent, Smith said the majority should have gone further. While he called child pornography an “enormous evil,” he said the way the state treats child porn offenders through SORA contains “anomalous, unintended consequences.”

Smith said the vast majority of such offenders should be classified as Level 1 risks—the lowest of the three risk classifications under SORA—though they often get put into higher risk categories.

Downward departures should be granted to child porn offenders where more stringent classifications would put them into higher-risk levels in the SORA system overall, the judge said.

“The resources that go into the more intensive monitoring of level two and level three SORA registrants can be more usefully expended in keeping track of so-called ‘contact offenders’—for example rapists, and abductors of children,” Smith wrote.

Courts setting risk-factor levels should take advantage of the court’s ruling in People v. Johnson, 11 NY3d 416 (2008), and make downward departures in risk factors for child porn offenders where they make sense, Smith said.

Lippman joined in Smith’s dissent.

The SORA ruling came in appeals of the classifications of child porn offenders in People v. Gillotti, 97, and People v. Fazio, 98.

Attorney Joseph Frazier of Lockport represented Neil Gillotti, a child porn offender in Niagara County. Assistant Niagara County District Attorney Laura Bittner argued for the county.

Christopher Ritchey, a partner with Boyd & Jenerette in Albany, represented George Fazio’s SORA classification in Albany Country for child porn crimes he committed in Pennsylvania. Assistant Albany County District Attorney Steven Sharp argued for the prosecution.

Both offenders argued that their risk-level classifications had been set too high at Level 2.